IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: RUTAKANGWA, J.A., KAIJAGE, J.A., And MUSSA, J.A.) CIVIL APPLICATION NO. 9 OF 2012 ASIA RASHID FIOHAIIED ............. ........ ........... APPLICANT VERSUS l vi GENI SElF ...................................................... RESPONDENT (Arising from the judgment of the Court of Appeal of Tanzania at Mwanza) (Rutakangwa, J.A., Kileo, J.A., and Oriyo, J.A.) dated the 23rd day of May, 2012 in

Civil Appeal No. 128 of 2011 RULING OFTHE COURT 29th November & 6th December, 2013 KAIJAGE, JA.: In this application brought under rule 66(1) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant is seeking the review of the Court's decision dated 23 rd day of May, 2012 in Civil Appeal No. 128 of 2011. In that decision, the applicant's appeal was found to be lacking in merit and was accordingly dismissed with costs. The present application is by way of a notice of motion in which the Court is being asked to review its judgment on the grounds that:- A' The Court misdfrected themselves in law 1

for ho/ding that all exhibits at the trial were dependent on Exh. P1 The Court erred in law for failure to observe that section 70 of the Evidence Act deals only with the mode of proof of Exh. P1 and it does not deal with the question of legality and validity of the same as an effective document of title. The court erred in law for importing factual assertions not supported and/or reflected in evidence and in the judgement of the trial District Land and Housing Thbunal to wit:- (I) That the trial Tribunal heavily relied on the disputed evidence of Exh. P1 to dec/are the appellant a lawful registered owner of the disputed house." At the hearing of the application, the applicant had the services of Mr. Benard Kabonde assisted by Mr Steven Magoiga, both learned advocates. The respondent, on the other hand, had the services of Mr. Salum Magongo, learned advocate. When the application was called on for hearing, learned counsel representing the parties amplified on what is basically contained in their respective written submissions earlier filed pursuant to the provisions of rule 106 of the Rules. We think, with respect, that the jurisdictional issue raised 2

and argued in opposition to the application could easily dispose of this appeal, without necessarily delving in its merits. We are in full agreement with the focused submission of Mr. Magongo which has it that an application for review can only be entertained upon the grounds and in a manner provided under the provisions of rule 66(1) and (3) of the Rules which reads:- "R. 66(1) The Court may review its judgement or order, but no application for review shall be entertained except on the following grounds:- the decision was based on a manifest error on the face of the record resulting in the miscarriage ofjustice; or a party was wrongly deprived of an opportunity to be heard; the Court's decision is a nullity; or the Court had no jurisdiction to entertain the case; or the judgment was procured illegally, or by fraud or perjury. (3) The notice of motion for review shall be filed within sixty days from the date of the judgement or order sought to be reviewed. It shall set out clearly the grounds for review. "[Emphasis is ours.] 3

In this case, the grounds for review stipulated under rule 66(1) of the Rules are not embodied in the applicant's notice of motion for review. His averments in his supporting six-paragraph affidavit have not cured this fundamental deficiency. On this aspect of the case, this Court, through numerous decisions, has taken a stance that no order of review can be granted outside the five grounds stipulated under that Rule. (See, for instance, EXAVERY MALATA Vs THE TEPUBLIC, Criminal Application No. 3 of 2013, PATRICK SANGA Vs THE REPUBLIC, Criminal Application No. 8 of 2011, both CAT (unreported). What appears to be set out clearly in the applicant's notice of motion for review, are grounds upon which the applicant is inviting this Court to re-assess the evidence which, in effect, will engage it to re-hear an appeal against its = own decision through the back door. In JAMES © SHADRACK MKUNGILWA AND ANOTHER Vs THE REPUBLIC, Criminal application No. 1 of 2012, CAT (unreported), this Court had an occasion to make the following instructive observation:- '.4 review application, therefore, should not be lightly entertained when it is obvious that what is being sought therein is a disguised re-hearing of the afready determined appeal." A more or less similar observation was made thus by the Court of Appeal of East Africa in LAKHAMSHI BROTHERS LTD V. REPUBLIC, Civil Application No. 6 of 1966:- '7n a review, the Court should not sit on appeal against its own judgement in the same proceedings. In a review, the court has inherent jurisdiction to 4

recall its judgement in order to give effect to its manifest intention on what dearly would have been the intention of the Court had some matter not been inadvertently omitted." There is no gainsaying in the present matter that the applicant's notice of motion and the written submissions filed in support thereof have not met the specific benchmarks stipulated in Rule 66(1) and (3). As such, we agree with Mr. Magongo that we have no jurisdiction to grant the relief sought by the applicant. Consequently, this application which is wanting in merit should be dismissed, with costs, as we hereby do. It is so ordered. DATED at MWANZA this 5th day of December, 2013. E.M.K. RUTAKANGWA JUSTICE OF APPEAL S.S. KAIJAGE JUSTICE OF APPEAL K. MUSA JUSTICE OF APPEAL I certify that this is a true copy of the original. I k j C { ya R DEPUTY REGISTRAR OURT OF APPEAL 5